Justice Scalia, Originalism and the First Amendment

In a recent conversation at the Aspen Institute's 2011 Washington D.C.'s Ideas Forum, Justice Antonin Scalia offered some interesting observations about his theory of originalism and the meaning of the First Amendment.

During the course of the conversation, Justice Scalia apparently brought up the Supreme Court's landmark 1964 decision in New York Times v. Sullivan. The situation in Sullivan was fairly straightforward. L.B. Sullivan, a Commissioner of Montgomery, Alabama, brought a civil libel action against several black clergymen and the New York Times because a fundraising ad run by the clergymen in the Times allegedly made several inaccurate statements in its description of a civil rights protest in Montgomery. The statements, if inaccurate, did not name Sullivan specifically and were relatively trivial in context. Although Sullivan could not prove that he had suffered any actual pecuniary damages as a result of the publication, the all-white Alabama jury awarded him damages of $500,000 (remember, this is in 1964).

When the case worked its way up to the Supreme Court of the United States, the Court unanimously held that it violated the First Amendment for the state to hold the New York Times and the clergymen liable. The Court held that even if the statements were factually inaccurate, it is unconstitutional to hold the speakers liable unless they acted with either knowledge of falsity or reckless disregard for the truth. Although conceding that false statements of fact do not themselves have any constitutional value, the Court recognized that to hold speakers liable for inadvertent false statements would seriously "chill" the willingness of citizens to engage in robust public debate. The general reaction to the decision in New York Times v. Sullivan at the time was captured by two seminal First Amendment thinkers -- Alexander Meiklejohn and Harry Kalven -- who proclaimed it an "occasion for dancing in the streets."

To fully understand the practical importance of New York Times v. Sullivan, it is important to consider the historical context. At the time of the decision, the South was in the throes of the civil rights movement. Southerners were deeply concerned about public opinion in the rest of country. The more the national media covered civil rights protests in the South, the more public opinion turned against those who were seeking to preserve segregation. Strategic lawsuits for libel brought by public officials against the national media for technical misstatements in news reports about civil rights protests were intended to deter the national media from covering the civil rights movement. This strategy was made especially effective because Southern juries were inclined to grant excessive damage awards against those who were embarrassing the South. In 1964, there were many similar actions pending against the New York Times in the South. The Supreme Court was acutely aware of this state of affairs, and that awareness no doubt led the justices to give the case the attention it deserved.

This brings me back to Justice Scalia. In his conversation during the Aspen Institute program, Justice Scalia made his familiar and obviously correct point that courts should not render decisions that in effect legislate. He then went on to say that New York Times Co. v. Sullivan was such a case. He explained that "the old libel law used to be [that] you're responsible, you say something false that harms somebody's reputation, we don't care if it was told to you by nine bishops, you are liable." In other words, if the statement was inaccurate, the speaker was liable, without regard to whether the speaker reasonably believed the statement to be true. Justice Scalia found the Court's change in the law illegitimate:

New York Times v. Sullivan just cast [the traditional common law of libel] aside because the Court thought in modern society, it'd be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, 'Yes, we're going to change our libel law.' But the living constitutionalists on the Supreme Court, the Warren Court, simply decided, 'Yes, it used to be that ... George Washington could sue somebody that libeled him, but we don't think that's a good idea any more.'

In Justice Scalia's view, then, the critical question is whether the Framers of the First Amendment at the time understood the provision as embracing the rule of New York Times v. Sullivan. If not - and clearly they did not understand the Amendment in that way in 1790 - then that ends the matter. The Constitution has nothing to say about the issue in New York Times v. Sullivan and it's up to the people of New York to change their law, if they want to do so.

There are many things wrong with this argument, and with originalism generally, (see here), but I want to focus on one point in particular. Justice Scalia suggests that the solution to the problem in New York Times was for the New York legislature to change its libel law. But the New York legislature had absolutely nothing to do with this situation. This was a lawsuit in Alabama, decided under Alabama law by an Alabama jury. The New York legislature was completely powerless to affect the matter in any way.

It was precisely this fact that made a constitutional decision necessary. It's bad enough that Alabama wants to censor what its own citizens can read, but what the situation in New York Times v. Sullivan demonstrated was that the nation cannot constitutionally allow each state to censor speech on its own, because in a national marketplace of ideas censorship in one state effectively precludes the press from distributing news to people nationally. Although only a few hundred copies of that issue of the New York Times actually found their way into Alabama, that gave Alabama sufficient leverage to impose a huge penalty on the Times that was designed to deter it from writing negative stories about the South generally.

In Justice Scalia's world, the New York legislature could do nothing to protect the right of its citizens to be informed, the national government could do nothing to protect the New York Times (and all other national news outlets) from such censorship, and as a result citizens throughout the nation would have their capacity to learn and to understand their own nation squelched by the State of Alabama. The Supreme Court in New York Times quite correctly concluded that such an outcome was profoundly inconsistent with what the Framers of the First Amendment had in mind.